Quick! Confiscate the Butter!

State sting asserts Michigan milk laws, chills farmers

Growing onsumer demand for fresh, unprocessed milk from happy cows runs up against regulations designed for big business and long distance.

For three years now, southwest Michigan farmers Richard and Annette Hebron have kept their family operation in business with weekly deliveries of fresh, un-pasteurized milk and other farm products direct to some 150 members of their Family Farms Cooperative in Ann Arbor.

And, for three years, regulators at the Michigan Department of Agriculture left the Hebrons—and a growing number of other small farmers who also produce and sell raw milk—alone. The reason is that, even though Michigan law requires that all milk sold at retail be pasteurized as a precaution against food borne illnesses, the raw milk the Hebrons provide with two other farms in the cooperative is not really sold that way. Customers buy shares in the cows that produce the milk, which qualifies them for an exemption in Michigan’s dairy law: People who own cows can drink their own cows’ un-pasteurized milk.

This legal truce between the MDA and such “cow-share” arrangements ended abruptly, however, on Friday Oct. 13, when state troopers stopped Richard Hebron on his way to Ann Arbor and produced a search warrant that allowed state agents to seize Mr. Hebron’s products, paperwork, and cell phone.

As the alarmed farmer watched the officials confiscate the privately contracted, un-pasteurized milk, buttermilk, yogurt, kefir, and butter, his wife, Annette, was enduring the same thing back home. There, plainclothes agents were packing up other products, taping shut freezers and coolers, and confiscating the family’s computer and business records.

What Is Retail?Katherine Fedder is the MDA official who approved the sting operation, which included months of undercover work by a spy from her agency, who infliltrated the co-op. She said that her department’s concern is not about cow shares but about location. Delivering to the warehouse of a specialty wine and food shop in Ann Arbor, she contends, may violate the state’s dairy laws because it is a matter of bringing un-pasteurized, unlabeled milk to a licensed retail establishment.

But Mr. Hebron and the store owner say this warehouse space is well away from the store’s retail traffic and that, lacking any clarifying language in Michigan law, they thought it was perfectly legal to make the privately owned, un-pasteurized milk products available to co-op members there.

Ms. Fedder takes issue with the negative reaction to the sting by the press and others, which have described it as “Gestapo-like.” But if the suddenness and severity of the MDA’s Friday-the-13th raids don’t qualify for jackboot status, they certainly are a wake-up call to entrepreneurial farms and their direct-market customers.

Local farm-to-table enterprises like Mr. Hebron’s are revolutionizing food markets by responding to new consumer demands. They are springing up like wild, untamable mint outside the typical, centralized, national and international channels that most food now travels: Nearly every morsel averages 800 to 1,200 miles before reaching our plates.

“Cow share” arrangements like that of the Family Farms Cooperative are increasing because a growing number of consumers like raw milk’s taste, its reported and perceived nutrition and digestibility benefits, and the simple fact that it comes direct from smaller, nearby farms.

But the entrepreneurial spirit re-connecting these local farms and consumers is also challenging the normal regulatory course of business at the MDA, which is charged with enforcing public health rules designed, in this case, to keep the mass-market milk supply safe.

Communication Breakdown?The ordeal has left the Hebrons and their two partner farm families traumatized, confused, and struggling to stay in business. Two weeks after the search and seizure, the Hebrons had yet to be charged with a crime, were waiting for news, and trying to soldier on without access to seized equipment and records.

A simple warning call from the MDA could have alleviated the agency’s concerns, said Mr. Hebron. “They could have come in and talked to us about it and we could have rectified the situation.”

The MDA’s choice of a sting operation raises an urgent question: How willing is the MDA to explore other ways to protect consumers and regulate farmers who are, in this case, buying and selling milk products that they prefer over what is available in mainstream stores? In other words, are state regulators willing to consider alternatives to regulatory rules written primarily for big business and long distances?

The agency’s treatment of the Hebron’s also is drawing criticism because it conflicts with the agency’s long-espoused commitment to helping farmers understand and comply with regulations. The sting stands in stark contrast to the MDA’s kid-glove treatment of some large livestock operations, such as the 2,500-cow dairies that now dominate the mainstream, industrial milk market, which the Hebron’s customers are deserting. Despite repeated complaints from neighbors and well-documented evidence of severe water pollution, livestock operations suspected of violating environmental laws generally receive months and even years of warnings before the state takes enforcement action.

In an interview with the Great Lakes Bulletin News Service, the MDA’s Ms. Fedder declined to say whether officials attempted to communicate with the Hebrons before the raids. She did confirm, however, that her division assigned an undercover agent to the cooperative last spring. This came after a local health department, apparently in the Hebron’s vicinity, reported in April that two children had become ill after allegedly consuming raw milk. Ms. Fedder also confirmed the facts in an Oct. 19 Business Week commentary: The local health department was unable to trace the illness back to raw milk or any other specific food.

Despite the lack of evidence that the Hebron’s milk was related to any public health harm, the undercover operation proceeded and evolved months later into the sudden sting operation.

Rights and ResponsibilitiesMs. Fedder insisted that the MDA respects private consumer choice and tolerates cow-share arrangements because the law says nothing about them: Her concern is about raw milk showing up in retail stores as demand for it rises.

“That’s where we will draw the line,” she said. “My biggest concern has always been a mother who goes into the store and grabs something she didn’t intend to grab versus a person with a high degree of knowledge of what they’re consuming and the choice they’re making.”

Ms. Fedder points to the majority of public health officials, who advise people not to drink raw milk. Mainstream milk producers also repeat this point in a campaign they have launched to defend the industry’s practices and processes—and to discredit and oppose the labeling of raw milk, organic milk, and milk from cows that have not been fed artificial hormones or daily doses of antibiotics.

Yet, ironically, food safety is a major factor in the rise of un-pasteurized milk providers, up from just a few known Michigan providers in 2003 to nearly 30 today, according to realmilk.com, a project of the Weston A. Price Foundation, which promotes the benefits of raw or un-pasteurized dairy products.

Raw milk consumers like the fact that they’re working with, and helping keep in business, small farmers who may be needed to keep the milk supply safe and secure in a time when more and more food is coming through increasingly consolidated, sometimes quite vulnerable channels.

A recent New York Times piece by author and researcher Michael Pollan pointed out, for example, that 80 percent of America’s beef is now slaughtered by just four companies, 75 percent of precut salads are processed by two companies, and 30 percent of milk by just one. The recent national recall of bagged spinach demonstrates how one small problem along America’s mass food production line can cause lots of damage.

Katherine Czapp, a member of the Family Farms Cooperative, believes Michigan regulators need to take such facts into consideration and give consumers and farmers more security and clarity in their efforts to exchange the food products they prefer.

“I think they need to look at places like California, where it is legal to buy raw milk off the shelf, or Pennsylvania,” said Ms. Czapp, who is also an editor of the Wise Traditions Journal, a publication of the Weston A. Price Foundation. “Let’s see what they did there to make that legally possible.”

Patty Cantrell directs the Michigan Land Use Institute’s entrepreneurial agriculture program. Reach her at patty@mlui.org.